Mark
Larsen appeals the circuit court's grant of Union Pacific
Railroad Company's Motion for New Trial and/or Review for
Plain Error Based on the Discovery of Juror Nondisclosure.
Larsen asserts four points on appeal. First he contends that
the circuit court erred in granting Union Pacific's
motion for new trial because there is no competent evidence
that Juror LS intentionally failed to disclose his union
membership in that it is unclear what Union Pacific was
seeking in its voir dire question, was not
established that Juror LS did not attempt to respond, and
Larsen was prevented from adducing testimony of Juror LS
regarding his understanding of the question. Second, Larsen
contends that the circuit court erred in granting Union
Pacific's motion for new trial because Union
Pacific's claim of juror nondisclosure was untimely in
that it was made well after the deadline for raising a claim
of error and encourages post-trial witch hunts. Third, Larsen
contends that the circuit court erred in granting Union
Pacific's motion for new trial because the testimony of
David A. Giles, Ph.D. is demonstrably not credible in that it
is internally inconsistent and self-contradictory. Finally,
Larsen claims that the court erred in granting Union
Pacific's motion for new trial because the alleged
nondisclosure by Juror LS was not prejudicial in that his
union membership had little connection to the case and no
bearing on his qualifications to act as a juror.

Union
Pacific cross-appeals contending that the circuit court erred
in denying its motions for directed verdict and judgment
notwithstanding the verdict arguing that Larsen failed to
make a submissible case for negligence under the Federal
Employers' Liability Act (FELA) because Larsen failed to
present substantial evidence that Union Pacific had actual or
constructive notice of any supposed dangerous characteristics
of the crane that Larsen claims caused his injury, and that
evidence was a critical element of a claim under the FELA.

We
first address Larsen's points on appeal. The facts, in
the light most favorable to the circuit court's judgment
and as relevant to Larsen's points on appeal, are as
follows. On May 6, 2013, Larsen, an employee of Union Pacific
and member of a labor union, filed his original petition
alleging that he was injured when he fell from a ladder while
working for Union Pacific. The case went to trial on December
15, 2014. On that date, a jury panel was called and voir
dire was conducted. Juror LS was a member of that jury
panel, and eventually became a member of the jury in the
case. During voir dire, LS was seated in Row 2, Seat
16.

The
court instructed the panel at some length regarding the panel
member's rights and responsibilities as potential members
of a jury. Specifically, the court told the panel of the
importance of honest and complete answers; that if any member
of the panel did not understand a question during voir
dire, he or she needed to raise a hand and it would be
clarified; that if they did not have an affirmative answer to
any question asked, the failure to raise their hand would be
the same as affirming under oath that the question did not
apply to them; and that if many hands were raised at once,
the panel members could lower their hands, and examination
would be conducted row by row. The court added: "But be
sure we don't pass your row and pass you without getting
your hand up and getting your response on the record."

The
court further instructed the panel that, if anyone was
experiencing any hardships that would make them unable to
participate in the proceedings, they should bring that to the
court's attention.

During voir dire, counsel for Union Pacific
inquired:

As you understand this is a claim by Mr. Larsen against Union
Pacific for some injuries. This is not a labor dispute. But
it is a dispute between an individual who happens to be the
member of a labor union and a railroad company. Is there
anyone else out here who is a member of a labor union? Okay,
I see a few hands. Anybody in the front row? I don't see
any hands in the front row or the second row. Third row,
okay? Let's go ahead and stick with the third row. Is it
[Venireman D]?

Two
panel members raised their hands. Counsel for Union Pacific
proceeded to question the two panel members regarding the
details of their affiliation with labor unions and how it
would impact their ability to serve fairly and impartially on
a jury in a case involving an on-the-job injury to a union
member. Venireman D responded that he was a member of United
Food and Commerce Workers, UFCW, and responded to questions
regarding that membership. Venireman M expressed an
affiliation with the Sheet Metal Workers Union. After
questioning these veniremen, counsel for Union Pacific
inquired, "I think we've covered all the rows, but I
just wanted to make sure. I see no further hands as far as
labor unions. How about let's broaden the search to
husbands or wives, anyone who has a husband or wife who is a
member of a labor union?" Counsel for Union Pacific
proceeded to question potential jurors who raised their hand
in response to that question. The record reflects that, at no
time during this process did Juror LS raise his hand or
otherwise indicate that he was a member of a labor union.

Throughout
the remainder of the voir dire process, counsel for
both parties questioned the panel regarding any biases or
prejudices that would lead any member of the panel to favor
one side or the other. While several venire members did
respond, Juror LS provided no response. Both the court and
counsel for each party questioned the panel regarding any
personal hardships that they might be experiencing that would
impact their ability to effectively serve on the jury. Juror
LS provided no response to any of these questions nor any
other questions posed throughout voir dire.

At the
conclusion of voir dire, both Larsen and Union
Pacific requested strikes for cause and made peremptory
strikes. Neither side struck Juror LS and he became one of
the twelve-person jury that considered and ultimately decided
the case. The jury panel was sworn, and the trial proceeded
for the next 5 days, from December 15, 2014 to December 19,
2014. On December 19, 2014, the jury began its deliberations,
and later returned a verdict in favor of Larsen, assessing
Larsen's damages to be $3, 200, 000. Juror LS
participated in the deliberations and signed the verdict form
awarding damages to Larsen. On December 29, 2014, the circuit
court entered its Judgment based on the jury's verdict.

On
January 28, 2015, Union Pacific filed a timely "Motion
for New Trial or, Alternatively, for Remittitur, together
with Suggestions in Support." On that same date, Union
Pacific also timely filed a "Motion for Judgment
Notwithstanding the Verdict, and Suggestions in
Support." On January 29, 2015, counsel for Union Pacific
requested that those motions be scheduled for hearing. The
motion hearing was scheduled for March 3, 2015.

On
February 26, 2015, Union Pacific filed a "Motion for New
Trial and/or Review for Plain Error Based on the Discovery of
Juror Nondisclosure, and Suggestions in Support." In
that motion, Union Pacific alleged that a manifest injustice
or miscarriage of justice had occurred because Juror LS had
intentionally concealed that he was a member of a labor union
and, even if the nondisclosure was unintentional, Union
Pacific was prejudiced because the information withheld had a
bearing on the juror's ability to fairly evaluate the
evidence. Union Pacific alleged that it had retained Dr.
David Giles, a jury researcher and consultant, to assist
Union Pacific in learning from the jurors what influenced
their decision in the case. The motion alleged that Dr. Giles
spoke with Juror LS on January 31, 2015, and during that
conversation Juror LS characterized himself to Dr. Giles as
the informal leader of the jury who had taken an active role
in leading deliberations. The motion alleged that, when asked
what factors were most significant to him, Juror LS
volunteered, "Look, I am a union guy" and
identified himself as a member of a labor union at his place
of employment. The motion alleged that Juror LS told Dr.
Giles that Larsen "had my vote right off." The
motion alleged that Juror LS emphasized to Dr. Giles the
point that Larsen was hurt at work and that Union Pacific was
trying to find a way not to pay him. Union Pacific sought
"plain error" review pursuant to Missouri Supreme
Court Rule 78.08 and informed the court of its intention to
raise the juror nondisclosure issue at the March 3, 2015
hearing on Union Pacific's Motion for New Trial.

On
March 3, 2015, the court conducted a hearing on Union
Pacific's Motion for New Trial or in the Alternative
Remittitur and Union Pacific's Motion for JNOV. At this
hearing, Union Pacific raised the issue of juror
non-disclosure and reiterated Union Pacific's earlier
request for plain error review. Union Pacific specifically
requested that the court conduct an evidentiary hearing into
Juror LS's alleged non-disclosure of his union
membership, and in support of this request, Union Pacific
submitted relevant portions of the voir dire
transcript as well as the affidavit of Dr. Giles. After
review, the court determined that the question regarding
labor union membership was a clear question and that an
evidentiary hearing was warranted to determine whether a
nondisclosure by Juror LS had occurred.

On
March 9, 2015, Larsen filed a "Supplemental Brief on the
Timeliness of Union Pacific's Motion for New Trial or
Review for Plain Error Based on Juror Nondisclosure."
Therein, Larsen argued that plain error review of the juror
nondisclosure issue was unwarranted because Union Pacific
failed to explain why it did not obtain the nondisclosure
information prior to the Rule 78.04 thirty-day deadline for
moving for a new trial, and delayed filing a motion for plain
error review for more than three weeks after Dr. Giles had
spoken with Juror LS and had discovered the purported
nondisclosure. ...

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